IN THE MATTER OF PUC DOCKET HP 14-0001, ORDER ACCEPTING CERTIFICATION OF PERMIT ISSUED IN DOCKET HP 09-001 TO CONSTRUCT THE KEYSTONE XL PIPELINE.
ON APRIL 17, 2018
FROM THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT HUGHES
COUNTY, SOUTH DAKOTA THE HONORABLE JOHN L. BROWN Judge
ANN ZEPHIER of Fredericks Peebles & Morgan, LLP Rapid
City, South Dakota Attorneys for appellant Cheyenne River
Sioux Tribe #28331.
THOMASINA REAL BIRD JENNIFER S. BAKER of Fredericks Peebles
& Morgan, LLP Louisville, Colorado Attorneys for
appellant Yankton Sioux Tribe #28332.
ELLISON Rapid City, South Dakota and ROBIN S. MARTINEZ of The
Martinez Law Firm, LLC Kansas City, Missouri Attorneys for
appellant Dakota Rural Action #28333.
de HUECK Pierre, South Dakota Attorneys for appellee Public
E. MOORE of Woods Fuller Shultz & Smith P.C. Sioux Falls,
South Dakota and WILLIAM G. TAYLOR of Taylor Law Firm Sioux
Falls, South Dakota Attorneys for appellee Trans- Canada
TransCanada Keystone Pipeline LP (TransCanada) applied to the
South Dakota Public Utilities Commission (the Commission) for
a permit to construct the Keystone XL Pipeline in South
Dakota. Following a contested proceeding, the Commission
granted the permit subject to 50 conditions. None of the
parties in that proceeding-including Dakota Rural Action, a
party to the current appeal-appealed the order issuing a
permit. Because TransCanada was unable to commence physical
construction within four years, it subsequently certified
that it continued to meet the permit conditions as required
by SDCL 49-41B-27. Upon receipt of that certification, the
Commission opened a docket, allowed the intervention of
numerous parties, conducted an evidentiary hearing, and
ultimately issued an order accepting the certification. The
Cheyenne River Sioux Tribe, the Yankton Sioux Tribe, and
Dakota Rural Action (collectively, "Appellants")
each appealed the Commission's decision to circuit court,
which affirmed. On appeal to this Court, Appellants argue
that the Commission and the circuit court committed numerous
errors. We consolidated the appeals, and because the circuit
court lacked jurisdiction to hear the appeals, we do not
reach the parties' arguments. Therefore, we vacate the
circuit court's decision and dismiss the appeal.
and Procedural History
In 2008, TransCanada announced its plan to construct the
Keystone XL Pipeline. The Keystone XL Pipeline would connect
to existing segments of the Keystone Pipeline system, which
carries tar-sands crude oil from Alberta, Canada, to delivery
points in Oklahoma and Texas. The proposal included placing a
36-inch-diameter steel pipe capable of transporting up to
900, 000 barrels of oil per day. The South Dakota portion of
the project would begin at the Montana border and exit into
Nebraska. The pipeline would extend 314 miles, crossing
portions of Harding, Butte, Perkins, Meade, Pennington,
Haakon, Jones, Lyman, and Tripp counties.
On March 12, 2009, TransCanada filed an application with the
Commission for a construction permit pursuant to SDCL chapter
49-41B, the South Dakota Energy Facility Permit Act. The
Commission opened Docket HP09-001, and on April 6, the
Commission issued a notice of application, an order for and
notice of public-input hearings, and a notice of opportunity
to apply for party status. The Commission held two public
hearings on April 27 and a third on April 28, where
individuals presented comments and questions at the hearings.
In May and June, the Commission granted party status to
Dakota Rural Action and fourteen other entities and
individuals. Following discovery, the Commission conducted a
three-day contested-case hearing beginning November 2, 2009,
at which TransCanada, Dakota Rural Action, and Commission
staff appeared. The Cheyenne River Sioux Tribe and the
Yankton Sioux Tribe, appellants in the present case, were not
On February 18, 2010, the Commission voted to grant the
permit subject to 50 conditions,  including that
"Keystone shall comply with all applicable laws and
regulations in its construction and operation of the
Project" and that "Keystone shall obtain and shall
thereafter comply with all applicable federal, state and
local permits, including but not limited to: [a] Presidential
Permit from the United States Department of State[.]"
The project required a presidential permit because the
pipeline emanated from Canada and crossed an international
border. TransCanada's application for a presidential
permit, filed in 2008, was still pending at the time of the
permit hearing. On June 29, 2010, the Commission issued an
amended final decision and order granting the permit. No
party appealed the Commission's decision.
Four years later, TransCanada still lacked a presidential
permit, and construction of the South Dakota portion of the
project had yet to begin. Meanwhile, TransCanada continued to
build other portions of the Keystone Pipeline system outside
South Dakota. Desiring to move forward with the Keystone XL
Pipeline, on September 15, 2014, TransCanada filed a
certification with the Commission as required by SDCL
49-41B-27. This statute provides in part that "if . . .
construction . . . commences more than four years after a
permit has been issued, then the utility must certify to the
Public Utilities Commission that such facility continues to
meet the conditions upon which the permit was issued."
In its "Petition for Order Accepting Certification,
" TransCanada attested that "the conditions upon
which the Commission granted the facility permit . . .
continue to be satisfied." TransCanada stated that it
remained "in compliance with the conditions . . . to the
extent that those conditions have applicability in the
current pre-construction phase of the Project" and that
"[TransCanada] will meet and comply with all the
applicable permit conditions during construction, operation,
and maintenance of the Project." TransCanada also
attached to its certification a quarterly report and a
tracking table of changes. The tracking table identified
changes in circumstances to those detailed in the findings
made in the Commission's 2010 final decision and order.
For example, TransCanada indicated that the total length of
the South Dakota portion of the pipeline had increased by
approximately one mile. TransCanada claimed that ...